Drink or climb, you have to choose!

Is the termination of an employee’s employment contract justified if the letter of dismissal accused him of having worked with a “higher than normal blood alcohol level“, when in fact he was “intoxicated“?

In the facts, a worker was victim of a work accident while he was on a construction site, in that he fell from a truck’s bucket on which he had been stationed to carry out his missions.

A blood alcohol test was then carried out by the gendarmerie, and proved to be positive.

In the letter notifying the dismissal, he was accused of having performed work at height “with a blood alcohol level higher than normal“.

Dismissed for gross misconduct on August 3, 2017, the interested party brought an action before the industrial tribunal to contest the termination.

However, the Court of Appeal found that the complaint was well-founded, on the grounds that the company had provided evidence that the employee was working at heights in a “state of intoxication“, which was contrary to the “rules prescribed by the internal regulations“.

However, the Court of Cassation censured the decision, recalling the strict nature of the rule that the letter of dismissal must set the limits of the dispute: “the complaint of performing work at height while intoxicated, a fact not covered by the letter of dismissal and whereas this document only referred to the facts of performing work at height with a blood alcohol level above normal.

In short, the employer must be specific about the alleged grievance in order to claim a violation of the internal regulations.

While such jurisprudence calls for caution, it is nevertheless dismayingbecause the difference between a “blood alcohol level above normal”. and a “state of drunkenness” is a matter of semantics, in addition to the fact that the result remains the same: the employee being under the influence of alcohol, he has placed himself in violation of the rules imposed on him, justifying that a sanction be pronounced against him.

But with this new absurd decision, the Court of Cassation sends a clear message: act according to your wishes, even if it means putting your life in danger, we will always be there to compensate you.

Cass. soc., 8 March 2023, 21-25.678